Dartford Borough Council (202329960)

REPORT

COMPLAINT 202329960

Dartford Borough Council

18 December 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration,’ for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Handling of the resident’s reports of antisocial behaviour (ASB) at the property.
2. Complaint handling.
The Ombudsman has also considered the landlord’s record keeping.

Background

The resident is a leaseholder of the property and the landlord, which is a local authority, is the freeholder. She purchased the lease to the property in January 2017. The lease document confirms the property is a first floor flat, but elsewhere the landlord and resident describe it as a maisonette. The landlord does not have any recorded vulnerabilities for the resident.
On 2 February 2023 the resident raised a formal complaint to the landlord. She considered the landlord had failed to address tenancy and ASB matters caused by her neighbour. This included the neighbour leaving household waste outside the block, which attracted rats, and a strong smell of urine and faeces entering her property from the neighbour’s. She described how the police attended on 2 occasions due to welfare concerns. While recognising the vulnerability of her neighbour, she said she did not feel that her 2 young children were safe living at the property.
The landlord acknowledged the resident’s complaint on 16 February 2023. In which, it apologised that its stage 1 response would be late while it waited on information from other services.
On 22 February 2023 the landlord provided its stage 1 complaint response. It said it had spoken with social services, the county council, police, and national health service (NHS) and assured the resident “matters have been addressed.” It said it was satisfied it had taken the “correct and appropriate action” but was unable to share information due to data protection and confidentiality reasons.
On the 23 February 2023 the resident expressed dissatisfaction with the landlord’s stage 1 response. She told the landlord that there had been a breach of her human rights under Article 1 of the First Protocol of the Human Rights Act 1998: Protection of property. She considered the landlord’s inaction to address her neighbour’s behaviours affected her peaceful enjoyment of the property. Despite the Ombudsman’s involvement, the landlord did not escalate her complaint to stage 2 of its internal complaints process (ICP).
The resident remained dissatisfied with the landlord’s lack of response and brought her complaint to us. She explained her desired outcome was for the landlord to recognise her neighbours vulnerability and ensure they had the appropriate support. Also, for it to recognise the affect its management of the situation had had on her and her family.
During our communication with the resident in November 2024, she explained matters remained ongoing and she continued to reside at another address.

Assessment and findings

Scope of investigation

The resident’s correspondence refers to the Human Rights Act 1998 (HRA 1998). This sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The HRA 1998 requires all public authorities, and other bodies carrying out public functions, to respect and protect individuals’ rights. The Ombudsman has no legal power to decide whether a landlord has breached the HRA 1998. This is a matter for the courts. However, the Ombudsman can decide whether a landlord has had due regard to its duties under the HRA 1998 as part of our consideration of a complaint.
We note the resident’s correspondence said that the landlord’s handling of her complaint affected her mental health and wellbeing. She says the landlord’s inaction and lack of communication regarding her circumstances “forced her to reside elsewhere for her families health and safety.”
Although we are an alternative dispute resolution service, we are unable to prove legal liability on whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can we calculate or award damages. Therefore we are unable to consider any personal injury aspects of the resident’s complaint. A court or insurer must make an assessment of liability in such matters. The resident may wish to seek independent legal advice if she wants to pursue a claim for damages for any adverse effect on her health.
We also acknowledge that within communication with us, the resident has expressed concerns about service charge costs for the property which she continues not to use. Any dissatisfaction regarding the reasonableness, liability, or the methodology used to calculate service charge contributions requires a decision by a court or tribunal service. This falls outside of our jurisdiction and is within the jurisdiction of the First-Tier Tribunal (Property Chamber). It is therefore appropriate that the resident has advised us that she has already sought independent legal advice regarding this matter.
In reaching a decision about the resident’s complaint, we consider whether the landlord has kept to the law, followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine the complaint by reference to what is, in our findings, fair in all the circumstances of the case. Where we identify a failure by a landlord, we can consider the resulting distress and inconvenience.

Handling of the resident’s reports of antisocial behaviour (ASB) at the property

On 3 February 2023 the resident raised a formal complaint with the landlord. During our communication with her, she explained she also spoke with social services and the county council. She described her concern for the welfare of her neighbour and the affect that their antisocial behaviour was having on her household. The resident says these organisations informed her that the landlord was responsible for her complaint and the appropriate tenancy management aspects of her concerns.
On the 23 February 2023 the resident expressed dissatisfaction with the landlord’s stage 1 response received the previous day. She told it that the county council had informed her it was “up to the landlord to manage her complaint, move her neighbour to more suitable housing, or involve Environmental Health (EH).” Despite the Ombudsman’s involvement, the landlord did not escalate her complaint to stage 2 of its ICP. Nor did it act on our requests to provide her with an explanation why it would not escalate her complaint.
Furthermore, following significant correspondence to the landlord between February 2024 to November 2024, it failed to provide us with the evidence requested for us to start our investigation. Missing information included no ASB or tenancy management case records, and no risk assessments or action plans. Nor did it provide any of its relevant policies and procedures. As such, we issued the landlord with 2 complaint handling failure orders (CHFO) on 15 July 2024 and 18 November 2024. Having spoken with the landlord again in December 2024, our request for information again went unanswered. We have therefore continued with our investigation.
Paragraphs 10 and 11 of the Scheme state that the member landlord must provide copies (without charge) of any information requested by the Ombudsman that is, in the Ombudsman’s opinion, relevant to the complaint or assessment of compliance with the Complaint Handling Code (the Code). This may include the following records and documents:
1. the member’s policies and procedures
2. any internal files, documents, correspondence, records, accounts or minutes of meetings, in hard copy or electronic form. This includes records relating to similar cases where the Ombudsman needs them to establish consistency of practice
3. a self-assessment against any good practice issued by the Ombudsman when ordered to do so
4. the member landlord must provide the requested information within a reasonable timescale in an accessible format or allow access for inspection
The landlord’s failures to provide much of the requested information was not appropriate and not in line with the obligations of our member landlords. This has affected our ability to accurately assess the timeline of events. The landlord’s failure to provide this information indicates poor record keeping and information management practices.
The Crime and Policing Act 2014 states that ASB is conduct which:
1. has caused, or is likely to cause, harassment, alarm or distress to any person
2. is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises
3. is capable of causing housing-related nuisance or annoyance to any person
While the landlord failed to provide its relevant ASB policy, its website acknowledges that residents have a responsibility, as set out in their tenancy agreements, to not engage or threaten to engage in any antisocial behaviour, nuisance and annoyance.
We acknowledge that any ASB situation can be distressing for a resident. In the circumstances of the case we are unable to decide whether ASB was taking place as alleged. Our role is to consider the evidence available, consider whether the landlord kept to the law, followed proper procedure and good practice, and determine whether it acted reasonably in the circumstances of the case.
It is reasonable from the information given to us that a welfare or safeguarding concern may have existed for the resident’s neighbour. It is therefore appropriate that the landlord’s stage 1 complaint response informed the resident that it was unable to share specific information due to data protection.
That said, while its response sought to reassure her it had spoken with appropriate external organisations, it is unclear what action, if any, the landlord took to visit the resident to assess the affects matters were having on her household. We have seen no evidence that it completed any risk assessments or provided the resident with any action plans of how it would address her concerns. It is therefore reasonable that the resident described experiencing time, trouble, distress, and inconvenience trying to progress matters with the landlord.
Also, given the likely vulnerability of the resident’s neighbour, we have seen no evidence the landlord considered the resident’s reports of ASB as a possible tenancy management matter. Nor is there evidence of the action the landlord took to monitor matters and ensure the neighbour maintained the conditions of their tenancy. It has therefore failed to demonstrate how it assessed the effects on the resident or investigate her reports which she says forced her to move out.
Between 28 November 2023 to 16 January 2024 the resident sought help from her MP and us. The evidence shows she raised ongoing concerns regarding the behaviour of her neighbour and concerns for her and her property’s safety. She provided images of the fire brigade gaining forceful entry to the neighbour’s property due to them leaving a cooking appliance on while away from home.
An incident such as this would cause alarm and distress. The landlord has again failed to demonstrate what action it took to communicate with the resident or reassure her it was monitoring her concerns from a tenancy management point of view.
Article 1 of the First Protocol of the HRA 1998 entitles people to the peaceful enjoyment of their possessions (such as home, land, physical possessions, money, pensions and welfare benefits). It will often be closely linked to rights under Article 8 (right to a private and family life). Which would for example include a landlord taking measures against perpetrators of ASB.
Where a resident has told a landlord that they have been treated unfavourably in relation to a protected characteristic or where they have referenced the human rights or equality legislation in their complaints, we should consider whether, and how a landlord has responded to this aspect in its complaint responses.
In this case, the resident has said the “rancid smells” and the presence of rats and maggots due to her neighbours behaviours, led her to leave the property. While we are not in a position to determine whether this was the resident’s sole reason for moving out, it is reasonable that it contributed. It is therefore unclear why the landlord has failed to demonstrate any action it took to monitor her concerns.
Landlords may be able to show they have shown due regard for the HRA 1998 if they consider the impact their decisions will have on the individuals affected and that there is a process for them to challenge by way of review or appeal. In this case the landlord has failed to demonstrate how it investigated the effects on the resident and it has failed to complete its ICP. By doing so, it has failed to provide the resident of her right to challenge its decision. It is therefore our finding that the landlord has not shown due regard to the HRA 1998 and its failure has led to a breakdown in the landlord and tenant relationship.
Based on our findings, we find severe maladministration with the landlord’s handling of the resident’s reports of ASB at the property. While we acknowledge the landlord appropriately protected the neighbour’s private data and was unable to share this with the resident, it has failed to demonstrate how it assessed the detrimental effects on her.
Furthermore, it has failed to demonstrate any action taken to work with, update, or reassure the resident, and failed to show that it resolved the issues. The landlord’s failure to respond further to the resident’s concerns does not demonstrate it learned from this case. It has failed to show what steps it took to prevent similar situations happening again to her or any other resident. It is reasonable that the distress and uncertainty would have been significant and a contributing factor to her decision not to remain at the property.
We order the landlord to pay £1,000 compensation. This is in line with the remedies guidance available to us. The landlord has failed to acknowledge it failings and made no attempt to put things right. Therefore, its failures exacerbated the situation and further undermined the landlord and resident relationship.

Complaint handling

The Ombudsman’s Complaint Handling Code (the Code) 1 April 2022 required landlords to acknowledge a complaint within 5 days. Also, for landlord’s to respond to stage 1 and stage 2 complaints within 10 and 20 working days, respectively. If it required more time, this should not have exceeded a further 10 working days without good reason. It should also agree any extension with the resident in advance.
For clarity, all further reference to the Code within this assessment will be the version dated 1 April 2022.
While the landlord failed to provide us with copies of its relevant policies when asked, previous investigations and the landlord’s website indicates its commitment to the expectations of the Code.
The resident raised her formal complaint to the landlord on 3 February 2023. It was therefore reasonable for her to expect an acknowledgement by 10 February 2023 and a formal complaint response by 17 February 2023. It was not appropriate that the landlord failed to meet either of these expectations, with its stage 1 response being 3 working days late.
We recognise that the landlord’s acknowledgement on 16 February 2023 informed the resident it was waiting further information from external agencies. While it apologised that it would not be able to provide a stage 1 response within its expected timeframes, it failed to demonstrate that it had discussed the possibility of a delay with her prior to this date.
The landlord’s stage 1 complaint response on 22 February 2023 did not uphold the resident’s complaint. The landlord provided the contact details of a named officer for her to request an investigation under stage 2 of its ICP. While it was appropriate that it explained how to escalate her complaint, the landlord failed to demonstrate any investigation of the resident’s concerns or assess the affects on her household.
Also, there is evidence the resident emailed the landlord’s named officer the next day, 23 February 2023. The resident clearly informed the landlord that she did not consider her complaint resolved. It is therefore unclear why the landlord did not treat this email as an escalation request and respond accordingly.
Paragraph 5.9 of the Code says if the landlord does not resolve all or part of the resident’s complaint to their satisfaction at stage 1, it must be progressed to stage 2 of the landlord’s procedure. This is unless an exclusion ground applies. In instances where a landlord declines to escalate a complaint, it must clearly communicate in writing its reasons for not escalating as well as the resident’s right to approach the Ombudsman about its decision.
While we acknowledge that data protection matters exist within this case, it is unclear why the landlord did not acknowledge the resident’s escalation request. Nor communicate its decision with her. This was not appropriate and not in line with paragraph 5.9 of the Code.
There is evidence on 8 March 2023 that the landlord sent a complaint handling satisfaction survey to the resident. She responded on 13 March 2023. In which, she said she had received no response to her escalation request and did not consider her complaint fully resolved to her satisfaction. This shows the landlord had a second opportunity to recognise her dissatisfaction. It is therefore unclear why the landlord simply reminded her of its stage 1 response on 22 February 2023 and its named officer responsible for stage 2 of its ICP. This was not appropriate and demonstrates a further failure by the landlord to meet the expectations of paragraph 5.9 of the Code.
Having sought help from us and her MP, we contacted the landlord on the resident’s behalf on 7, 13, 23, and 28 February 2024 asking it to provide her with a stage 2 response or explain why it would not escalate her complaint. We made further unsuccessful attempts to progress this request on 14 and 20 May 2024 and 15 July 2024, where we issued the landlord a complaint handling failure order (CHFO).
While we would expect a resident’s complaint to complete the landlord’s ICP, there are sometimes reasons, as is the case here, when we will consider a complaint duly made to us for investigation. Paragraph 35.b. of the Scheme states that a complaint is duly made when it has exhausted, or the Ombudsman has decided it has exhausted, the members internal process for considering complaints. The landlord’s failure to adhere to the expectation of the Code or act on our correspondence warrants our determination that the resident’s complaint has completed the landlord’s ICP.
The Code states that a landlord must not unreasonably refuse to escalate a complaint through all stages of the complaint’s procedure. However, because of its handling of the matter, it failed to consider how her neighbour’s behaviour adversely affected her household. This caused her unnecessary time and trouble in pursing the matter and meant the landlord failed to use its complaints process as an effective tool to resolution.
During our correspondence with the landlord in November 2024 it informed us that changes to its teams and unplanned staff absences had significantly affected its workloads. While we acknowledge and are empathetic to such situations, the landlord should have made provision for such situations. By not doing so, it appears the landlord simply disengaged from the resident’s complaint. Its failure to use its complaints procedure effectively deepened the failings in its handling of the resident’s substantive issue.
Based on our findings, we find that the circumstances for severe maladministration apply. The landlord’s failures and lack of communication post stage 1 of its ICP exacerbated the situation. It undermined the landlord and resident relationship and regardless of our involvement, the landlord repeatedly failed to provide the resident with a stage 2 final response or an explanation for its decision not to escalate her complaint.
The detriment of complaint handling alone is generally low. Therefore, redress needed to put things right is at the lower end of our remedies scale. As such, we order the landlord to pay the resident £250 to put things right.

Record keeping

As documented within this report, there has been evidence of poor record keeping. This led to the landlord delivering poor or delayed communication and failures to meet its obligations to us as a member landlord. It was not appropriate that it was necessary for us to issue 2 CHFO’s.
Without good knowledge and information management (KIM) a landlord is unable to deliver its services efficiently and effectively. It is imperative that records are accurate and maintained to keep both the property and the resident safe now and in the future. The landlord failed to demonstrate that it effectively monitored the resident’s concerns. Nor that it considered the effects the reported situations were having on her household. This was not appropriate and did nothing to foster a positive landlord and resident relationship.
Based on the evidence and findings of this investigation, we find severe maladministration with the landlord’s record keeping.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration with the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration with the landlord’s complaint handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration with the landlord’s record keeping.

Orders and recommendations

Orders

We order the landlord to take the following action within 4 weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
1. The chief executive to verbally apologise to the resident for the findings of this report.
2. Pay the resident £1,250 compensation. The compensation is made up of:
  1. £1,000 for the time, trouble, distress, and inconvenience caused by the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) at the property.
  2. £250 for the time, trouble, distress, and inconvenience caused by the landlord’s complaint handling.
In accordance with paragraph 54.g. of the Housing Ombudsman Scheme, we order the landlord to carry out a senior management review of this case to find what went wrong and what it would do differently. It should present its findings to its senior leadership team and a copy supplied to us within 8 weeks. It should include assessment against the Ombudsman’s knowledge and information management Spotlight report, unless the landlord can demonstrate it has done this within the last 12 months. The report should include:
1. An assessment of the landlord’s processes and procedures for recording and responding to reports of ASB.
2. An assessment of current complaint handling resources and how it will ensure that it responds to complaints within the expected timescales as set out in the statutory Code, 1 April 2024.
3. That there is effective internal communication, and that teams are aware of relevant roles in keeping residents updated with regards ASB, tenancy management, and or complaint responses.
4. It should demonstrate that it has provided refresher training to its ASB and complaint handling staff within the last 6 months. If it is unable to do so, we order the landlord to provide training to ensure that it manages complaints and ASB reports in accordance with its procedures.